This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed June 28, 2005
Affirmed in part, reversed in part, and remanded
Gordon W. Shumaker, Judge
Itasca County District Court
File No. KO-02-1094
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant Itasca County Attorney, Courthouse, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for respondent)
Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
this appeal from an order revoking appellant’s probation for first-degree
assault, appellant Clayton Bellanger argues that the district court abused its
discretion in revoking his probation based on three new misdemeanor offenses
without making a finding that the need for confinement outweighed the policies
favoring probation. He also argues that
his waiver of his right to appeal, as part of the plea agreement, is
unenforceable, and that Minn. Stat. § 244.11, subd. 3(b) (2002), unconstitutionally
bars a defendant who receives a dispositional sentencing departure from
obtaining direct appellate review of his sentence. Additionally, appellant argues that Blakely
applies retroactively to his 2002 sentence, and the double durational departure
based on judicial findings violates his right to a jury trial, requiring a
modification of the sentence to the presumptive term. Finally, appellant argues that the record
does not support the court’s finding that the assault was committed with
particular cruelty. Because there was no
constitutional infirmity, Blakely does
not apply here; and the court did not err in finding particular cruelty, we
affirm those determinations. But because
the court failed to make all the requisite
Late in the evening on May 28, 2002, appellant Clayton Bellanger and several other people were gathered together in Ball Club drinking alcohol. At about 10:30 p.m. three people, two men and one woman, arrived to join Bellanger’s group. Upon arriving, the woman indicated that M.S., one of the men in the group, had hit her in the face. Approximately 15 minutes later, a fight began between M.S. and Bellanger’s group of friends.
Throughout the course of the evening, Bellanger continued to fight intermittently with M.S. and others. The group would fight, stop to drink, and resume fighting. Later, as Bellanger was walking to a friend’s house, M.S. yelled “something smart” and began to run away. Bellanger chased him and tackled him, and the two exchanged punches. One of Bellanger’s friends then picked up M.S. and held him under his arms as Bellanger kicked him five or six times in the head. Bellanger abandoned M.S. next to the road and went to his friend’s house. When Bellanger left M.S., he was not moving or talking and his eyes were shut.
was treated at the
On September 20, 2002, Bellanger pleaded guilty to first-degree assault under a plea agreement that provided for a double upward durational departure and a downward dispositional departure, resulting in a stayed 172-month sentence. The basis for the downward departure was Bellanger’s cooperation and willingness to testify truthfully in any other trials. The basis for the upward departure was the particular cruelty of the assault. As part of the agreement, Bellanger would have ten years of supervised probation. He also agreed to have a chemical-dependency and anger evaluation and pay a $1,040 fine. Additionally, he agreed to waive his right to appeal either the conviction or the sentence. The district court sentenced Bellanger in accordance with the agreement on October 28, 2002.
On June 21, 2003, Bellanger admitted to violating his probation by consuming alcohol. The court ordered him to serve 15 days in jail and regularly attend Alcoholics Anonymous meetings. He violated probation again on January 14, 2004, when he admitted to drug use, failure to pay fines, and failure to remain in contact with his probation officer. The court required that he serve six months in jail. On June 22, 2004, Bellanger pleaded guilty to three misdemeanor offenses, including obstruction of legal process, underage consumption, and criminal damage to property. After a hearing, the district court vacated the stay and executed Bellanger’s original 172-month sentence. This appeal followed.
D E C I S I O N
1. Probation Revocation
argues that the district court erred in revoking his probation and executing
his sentence because it failed to provide specific findings on each of the
district court “has broad discretion in determining if there is sufficient
evidence to revoke probation and should be reversed only if there is a clear
abuse of that discretion.” State v.
claims that the district court erred when it revoked his probation and executed
the sentence without making specific findings on the
this case, the district court failed to make specific findings for each of the
Bellanger asserts that Minn. Stat. § 244.11,
subd. 3(b)(1)(2) (2002), is unconstitutional.
We evaluate a statute’s constitutionality as a question of law. Granville
Here, Bellanger claims that Minn. Stat. § 244.11, subd. 3(b), is unconstitutional because: (a) a defendant cannot waive his right to appeal a sentence; (b) it violates the separation of powers doctrine; (c) criminal rules take precedence over conflicting procedural statutes; and (d) it violates the Equal Protection Clause.
a. Waiver of right to appeal
argues that, although he waived his right to appeal during the plea hearing,
that waiver is unenforceable. Generally,
it is possible to forgo a constitutional or statutory right with a knowing,
intelligent, and voluntary waiver. Ballweber
v. State, 457 N.W.2d 215, 217 (
generally permit challenges alleging that the sentence imposed was in violation
of the plea bargain.” Waiver of the
Right to Appeal, 23
Bellanger’s waiver meets the criteria for a valid waiver. However, under current caselaw, a right to have the sentence reviewed is not valid as a matter of law. Therefore, we hold that Bellanger’s waiver of his right to appeal his sentence is unenforceable.
b. Separation of powers doctrine
asserts that Minn. Stat. § 244.11, subd. 3(b)(1)-(2) (2002), violates the
separation of powers doctrine and is therefore unconstitutional. Essentially, his argument is that the
judiciary’s role is to determine procedural issues, while the role of the
legislature is to determine matters of substantive law. The Minnesota Supreme Court has recognized
that the judiciary has the authority to regulate procedural aspects of criminal
actions in all courts in this state. State
v. Johnson, 514 N.W.2d 551, 553 (
this case, the challenged
c. Criminal rules over procedural statutes
argues that Minn. Stat. § 244.11, subd. 3(b)(1)-(2), conflicts with a rule
In this case, the rule that Bellanger claims conflicts with the applicable statute is Minn. R. Crim. P. 28.02, subd. 2(3), which provides that a defendant may appeal as of right from any sentence imposed or stayed in a felony case. Bellanger appears to believe that this rule guarantees an unconditional right to appeal a sentence. However, the rule does not state that the right to appeal is unconditional. And the statute Bellanger cites as conflicting with the rule does not deny a defendant’s right of appeal, but limits the assertion of that right to a reasonable time frame of 90 days. Minn. Stat. § 244.11, subd. 3(b)(1)-(2). In fact, this statute is clearly in accord with the rules of criminal procedure. According to Minn. R. Crim. P. 28.02, subd. 4(3), “[a]n appeal by a defendant shall be taken within 90 days after final judgment or entry of the order appealed from in felony and gross misdemeanor cases.” And a judgment shall be considered final within the meaning of these rules when there is a judgment of conviction upon the verdict of a jury or the finding of the court, and sentence is imposed or the imposition of sentence is stayed. Minn. R. Crim. P. 28.02, subd. 2(1). Therefore, because the rule does not provide for an unconditional, unlimited right to appeal, and because the statute merely clarifies that the same time limit applies to defendants who have agreed to plea agreements, Bellanger’s argument fails.
d. Equal Protection violation
Bellanger claims that Minn. Stat. § 244.11,
subd. 3(b)(1)-(2), violates the Equal Protection clause of the Fourteenth
Amendment and Article 1, section 2 of the Minnesota Constitution. Statutes must be proven unconstitutional
beyond a reasonable doubt. Scott v.
Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 73 (
acknowledges that this statute does not involve a suspect class or a
fundamental right. Therefore, the
statute is presumed valid and will be sustained if the classification drawn by
it is rationally related to a legitimate government interest. Kolton v.
that (1) [t]he distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.
Bellanger argues that the distinction this statute makes is between defendants who enter plea agreements and receive stayed sentences and “all other defendants.” He argues that this distinction occurs because the defendants who have entered plea agreements and have received stayed sentences are denied the right to appellate review. Bellanger either misreads the statute in reaching this conclusion or implies that the statute “functionally denies” a defendant in this position appellate review. Although it may not be the most prudent course of action for a defendant who has received a stayed sentence as part of a plea agreement to challenge the sentence on appeal, he is not denied the right to an appeal under the statute. In fact, the statute clearly guarantees the right to appeal as long as it complies with particular guidelines. Notably, these guidelines do not drastically differ from the right to appeal all of the “other defendants” have in that it must be done in 90 days. Compare Minn. R. Crim. P. 28.02, subd. 4(3), and Minn. Stat. § 244.11, subd. 3(b)(1)-(2). Therefore, because virtually all defendants have the right to appeal a final judgment within 90 days, there is no real distinction between Bellanger and other defendants and, thus, his argument fails.
3. Is Bellanger’s sentence unconstitutional under Blakely?
Affirmed in part, reversed in part, and remanded.
 The Minnesota Supreme Court granted review in December of 2004. Briefs in that case have been submitted but arguments have not yet been scheduled.